The policy of “zero tolerance” has been prominent in the news lately, and not in a good way.
Imposed by the Trump administration on immigrant crossings, it is the root cause of the humanitarian disaster unfolding on our southern border, where children are being ripped away from their families and lost in a bureaucratic chaos.
To scholars of zero tolerance, this isn’t surprising. Studies of its application in the fields where it has become most popular — school discipline and community policing — find that it doesn’t work to maintain order or reduce crime.
Although zero tolerance generally is implemented to signal a tough stance against wrongdoers, in fact it signals weakness, not strength. And although by its very definition it’s designed to be applied universally, almost always it’s directed chiefly at minorities.
Those flaws are all on display at the border. There, the zero-tolerance policy proclaimed by Atty. Gen. Jeff Sessions in May has created more chaos, not less. It’s manifestly directed at Latino border-crossers. It has tied the hands of immigration and border officials by depriving them of autonomy and judgment, rather than giving them a law enforcement tool.
So let’s take a look at the history of zero tolerance, and see how it almost always goes wrong.
Zero tolerance as a law enforcement tool dates back to the 1970s and the “broken windows” theory of policing popularized by criminologists James Q. Wilson and George L. Kelling. Their argument was that the community environment signaled acceptance or disapproval of crime — that streets with lots of broken windows, for example, were likely to invite further vandalism, leading to a spiral down into endemic violent crime.
The answer was to clean up the environment. In New York City, that meant uncompromising pursuit of wrongdoers, from prostitutes and street-corner drug dealers to fare-beaters in the subways. After Michael Bloomberg’s election as mayor in 2001, broken windows morphed into the notorious “stop and frisk” policy, in which individuals were confronted by police officers merely for looking furtive or, as civil rights advocates asserted, for looking black.
The harvest included accusations of overly harsh treatment by police of trivial offenders or nonoffenders, especially of minorities, and an increase in charges of civil rights violations and costly settlements in cases of abuse, injuries or death.
Adherents of broken-windows policing pointed to a decline in violent crime as a marker of its success. The problem, however, was that crime rates had begun to fall even before the policy was implemented, and were falling nationwide — including in cities that hadn’t imposed broken windows and even some where the police forces had been dysfunctional, such as Los Angeles. Other reasons must have been responsible for the trend, whether an improvement in the economy or, as Kevin Drum of Mother Jones has reported, the removal of lead from the environment.
Nevertheless, by the late 1980s, zero tolerance had moved into the schools, as Russell J. Skiba of Indiana University has documented. Federal policy encouraged uncompromising treatment of weapons and drugs in schools, and within a few years, more than 80% of the nation’s schools had a zero-tolerance policy in place in at least some form. Zero-tolerance became even more prevalent after 1999’s Columbine school massacre, which underscored the impression that America’s schools had turned into war zones.
Yet the questions of how these policies were applied and whether they worked remained open, as suggested by the title of a 2001 paper written by Skiba and Kimberly Knesting of the University of Wisconsin: “Zero tolerance, zero evidence.”
Throughout the 1990s, absurd applications of the rule seemed to outpace signs of dangers it addressed: A suspension for possession of a 10-inch chain attached to a girl’s Tweety Bird wallet (because the school district classified a chain as a “weapon”); second-graders charged by juvenile crime authorities for pointing paper guns at each other; expulsion of a 15-year-old girl for giving Midol to a friend suffering from menstrual cramps.
In Tennessee, a kindergartener was expelled for carrying a toy gun in his backpack, and in Colorado, a fifth-grader whose mother had packed her a kitchen knife to cut her lunchtime apple turned it in to her teacher, but was expelled — zero tolerance for weapons in school.
“Targeting both minor and major disciplinary events equally,” Skiba and Knesting observed, “will, almost by definition, result in the punishment of a small percentage of serious infractions and a much larger percentage of relatively minor misbehavior.”
Moreover, the certainty of harsh punishment for any student brought into the disciplinary system led teachers and administrators to keep favored students out of the system entirely. The result was a disproportionately harsh treatment of black students and other minorities or those from socio-economically disadvantaged backgrounds who didn’t get that forebearance.
The discrepancy became especially glaring when zero tolerance began to be applied not merely to weapons or drug violations, but for subjective infractions such as talking back or displaying a bad attitude.
What’s worst about the policy, Skiba and Knesting wrote, is that “there is no convincing documentation that zero tolerance has in any way contributed to school safety or improved student behavior.” In fact, because of its inconsistent application and its harshness, “the most consistently documented outcome of suspension and expulsion appears to be further suspension and expulsion, and perhaps school dropout.”
In recent years, some districts have moved away from zero tolerance. A leader in the shift is the Los Angeles Unified School District, which in 2013 banned suspensions for "willful defiance," a subjective catch-all for such behavior as refusing to take off a hat, turn off a cellphone or failing to wear a school uniform. LAUSD took the action after statistics showed that African Americans were disproportionately punished — accounting for 26% of those suspended in 2010-11, although they made up 9% of the student population.
Within two years, suspensions at LAUSD had fallen by 53%. For those who believed that the solution to dealing with troubled students was to keep them in school, not evict them into the streets, this was a major victory.
The truth is that zero tolerance signals a lack of trust in the judgment of people in authority in the field and on the ground — exactly where such judgment is most needed. By removing responsibility for case-by-case evaluations in complicated situations, zero tolerance makes enforcement easier and perhaps cheaper. One doesn’t need as many officials passing judgment and taking the time to examine every case; but the target population suffers and pays.
Or, as has happened at the border, the costs become magnified and passed over to another part of the system.
That’s exactly what has happened with the Trump policy of zero tolerance in immigration. The policies imposed by Atty. Gen. Sessions and President Trump treat everyone at the border the same — whether they’re arguably eligible for protection as asylum-seekers from violence, whether they arrive at an established crossing point or elsewhere, whether they come with children or alone. In the formulation by Sessions and Trump, they are all lawbreakers and many are merely child smugglers.
“If you cross the border unlawfully, then we will prosecute you,” Sessions said in announcing the policy in May. “It's that simple.”
But of course it isn’t that simple. Nothing ever is. Prior to zero tolerance, federal immigration officials and prosecutors had to take a multitude of considerations into account. The most effective way to do so, former Homeland Security Secretary Janet Napolitano (now the president of the University of California) told my colleague Teresa Watanabe, was to treat illicit border crossings as civil matters, not criminal.
The Obama administration concluded that doing otherwise, Napolitano said, “not only would require the separation of families, but it would be a misallocation of our uses of the U.S. attorney’s offices.”
That meant pulling prosecutors off “cases involving illegal arms, involving large drug shipments, involving human trafficking [and] into handling what under federal law is a misdemeanor, which is your initial apprehension for illegal entry into the United States. And that, in addition to consideration of what would happen to families or children, led us to conclude pretty quickly that it would be a bad idea. And it is.”
The wisdom of that conclusion must be staring Sessions, Trump and Homeland Security Secretary Kirstjen Nielsen in the face today — if they’re watching. Over the first seven months of fiscal 2017-18, through April, federal prosecutors brought more than 40,300 criminal immigration cases, of which more than 56% were for misdemeanors. But altogether they accounted for 54% of all federal prosecutions.